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Family Law and COVID-19

Updated: Nov 5, 2022

COVID-19 pandemic has affected numerous aspects of our lives and its full impact on the Family Law remains to be seen.

Practice Directions and COVID19 List

The Federal Circuit and Family Court of Australia has introduced a number of COVID-19 related practice directions throughout the pandemic to assist the public during the litigation process.

For instance, as per re-issued Practice Direction dated 7 September 2021, the Court now allows the parties to execute Affidavits and other court documents (except for E-filing Application for Divorce) without a qualified witness and such execution can also be done electronically simply by the party typing their name in the required field of the document.

The Court has also introduced a special COVID-19 list to enable an efficient resolution of parenting and urgent property matters affected by COVID-19. The list operates electronically and allows the Judge or Senior Registrar to hear the proceedings from any registry in the Court. The importance of this special list cannot be overstated as it allows for efficient and timely resolution of urgent matters affected by COVID-19 ranging from family violence matters and matters involving parties being unable to fulfil their parenting obligations due to COVID19 to issues with travel arrangements and urgent financial and maintenance matters affected by COVID-19.

If a particular matter fits the required criteria for the COVID-19 list, the matter will usually be given first return date within 3 business days of the application being filed if it is urgent, and otherwise within 7 business days. The Court will also consider whether the matter is suitable for an urgent electronic mediation or conciliation. This efficient turnaround has been greatly welcome by practitioners and litigants affected by the pandemic.

Case Law

The impact of COVID-19 on settled case law is yet to be fully examined.

In the often-cited matter of Martyn & Martyn [2020] FamCA 526 (1 July 2020), the Family Court considered an application by a father to set aside a Binding Child Support Agreement due to the impact of COVID-19 pandemic on his business.

The Court accepted the father’s proposition that the COVID-19 pandemic sufficiently constituted exceptional circumstances that arose after the parties had entered into the Agreement on 16 August 2012.

It was also accepted that the father would face significant financial hardship due to the exceptional circumstances caused by the COVID-19 pandemic. Importantly, the father was able to show that his taxable income had reduced from $174,999.00 and $166,491 in 2012 and 2013 respectively, to just $41,460.00 in 2019. As a result of financial difficulties arising from the COVID-19 pandemic, the father also received assistance from the Federal Government’s JobKeeper Payment scheme.

In explaining the Court’s decision to set aside the Agreement, McClelland DCJ stated the following at paragraph 71:

“Accordingly, had it not been for the outbreak of the COVID-19 pandemic, the Court would not have been satisfied, on the basis of the evidence presented, that the father’s business was in such dire financial circumstances that it established the existence of exceptional circumstances for the purpose of s 136(2)(d) of the CSA Act. However, the father was not challenged that, as a result of the impact of the COVID-19 pandemic, the business activity of F Pty Ltd has reduced by approximately 90%. It can reasonably be inferred that, consequently, the income derived by the father from the business will be significantly reduced below the amount which he received in the last financial year, being the sum of $41,460. It is clear that the reduction of the father’s income below that level will not enable him to pay child support in the sum of $1,550 per month as required by the Agreement. I am, therefore, satisfied that the outbreak of the COVID-19 pandemic is an exceptional circumstance and, further, I am satisfied that the father would suffer hardship if the Agreement is not set aside.”

The impact of COVID-19 on Binding Financial Agreements is not fully clear, especially in cases where a party to the agreement is substantially affected by COVID-19. It is likely, however, that a number of Financial Agreements will be set aside as a direct or indirect result of COVID-19 pandemic.

The pandemic has also hugely affected the parenting matters. In Denham & Newsham [2021] FamCAFC 141 the Court held the impact of restrictions on travel and evidence in relation to international border restrictions due to COVID-19 were material facts to be taken into account by the Court when making a decision on a parenting arrangement. In another complex relocation case of Bergmann & Bergmann [2021] FamCA 599; (12 August 2021) orders were made for the two children aged 12 and 10, to live with the father due to the mother’s decision to relocate to France. The uncertainty surrounding the mother’s move to France and the COVID19 pandemic were some of the factors taken into account by the Court in making this decision.

The uncertainty surrounding the pandemic to this day still remains ever-present in Family Law litigation much like in other aspects of our lives. If your Family Law matter has been affected by COVID-19 or if you simply have any queries regarding your Family Law matter, you should contact our office for a free initial consultation on 02 8722 5021. Our experienced family law team will address all your queries and provide valuable guidance on your matter absolutely obligation fee during our initial consultation with you. You can also book your free initial consultation online.


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